977.076 (1), and the possibility that the payment of attorney fees may be made a condition of probation, should the person be placed on probation. Furthermore, if found to be indigent, the person shall be promptly informed of the extent to which he or she will be expected to pay for counsel, and whether the payment shall be in the form of a lump sum payment or periodic payments. The person shall be informed that the payment amount may be adjusted if his or her financial circumstances change by the time of sentencing. The payment and payment schedule shall be set forth in writing. This subsection does not apply to persons who have paid under s. 977.075 (3m). History: 1977 c. 29; 1979 c. 175 s. 53; 1979 c. 356; 1981 c. 20 s. 1833, 2202 (41) (a); Sup. Ct. Order, 123 Wis. 2d xi (1985); 1985 a. 29; 1987 a. 27, 61, 399; 1991 a. 39; 1993 a. 16, 451, 491; 1995 a. 27, 77; 2001 a. 16; 2005 a. 293; 2007 a. 20, 97; 2009 a. 164; 2017 a. 184, 359; 2021 a. 238 ss. 37, 38, 45. Cross-reference: See also ch. PD 3, Wis. adm. code. Judicial Council Note, 1984: Sub. (1) (c) is amended by dispensing with redeterminations of indigency unless the notice under s. 809.30 (2) (b) indicates that the defendant’s financial circumstances have materially improved or the district attorney timely requests a redetermination under s. 809.30 (2) (d). The intent is to limit the cost and delay associated with indigency redeterminations to cases in which there is reason to believe that the defendant no longer qualifies for public defender assistance. [Re order effective July 1, 1985] A defendant must prove an inability to afford counsel by a preponderance of the evidence. State v. Buelow, 122 Wis. 2d 465, 363 N.W.2d 255 (Ct. App. 1984). A determination of indigency by the State Public Defender is not the end of the court’s inquiry of the right to counsel. State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991). In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913, 00-2138. Under Dean, 163 Wis. 2d 503 (1991), a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the State Public Defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02-1313. The procedures set forth in Dean, 163 Wis. 2d 503 (1991), suggest that the inherent power of the circuit court shall be exercised to cover situations in which a defendant cooperates with the financial analysis by the State Public Defender (SPD) and is found not to be indigent under the legislative criteria but, based on the individual circumstances of the case, public justice, and sound policy, is in fact indigent. The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. A defendant in this position carries the burden of submitting proof to the circuit court to enable it to
STATE PUBLIC DEFENDER
977.077
make such an assessment. State v. Kennedy, 2008 WI App 186, 315 Wis. 2d 507, 762 N.W.2d 412, 08-0435. The State Public Defender may be denied access to jail inmates who have not requested counsel, and jail authorities need only provide over the telephone that information necessary for the public defender to assess the need to make an indigency determination in person under sub. (1) for an inmate who has requested counsel and claims indigency. 78 Atty. Gen. 133.